Climate Justice - Can the courts solve the climate crisis?

Can governments and industry be put on trial in climate cases, to ensure the rights of the most vulnerable and future generations? The livelihoods of hundreds of millions could be threatened by unprecedented storms, droughts, floods, and sea-level rise.

It’s one of the world’s deep injustices: Even though developing countries have emitted only a small fraction of the greenhouse gases in our atmosphere, climate models project that they are the most likely to suffer the worst consequences.

In other words: The people least responsible for the climate crisis will be the hardest hit – including generations yet to be born.

Imagine that water and food become scarce in a drought, that you lose a loved one and your home in a powerful storm, or that you are forced to abandon your island and community because of sea-level rise.

This is climate change. And it is deeply unjust. But with it, a new movement is emerging. From the Netherlands to Peru, from Fiji to the United States of America, from Indonesia to South Africa, people are starting climate lawsuits against governments and corporations.

These cases might change the rules of the game. And they will hopefully help to hold those accountably who are most responsible for climate change. Join me in this episode to explore how the law and courts can help to achieve climate justice.

Is it possible to force a government to stop listening to the lobbyists and instead protect the climate? Or to hold a multinational company accountable for profiting from products that are causing global warming? These are some of the questions currently examined in courtrooms around the globe.

One of the lawyers working on this subject is Tessa Khan, the Director of the Climate Litigation Network. We called her up and reached her in Sydney, Australia, on a hot summer day. The thermometer had climbed to 38 degrees Celsius. But record-breaking summers are not the only changes Australians are seeing, Tessa told us:

"The impact of climate change that I think people are most conscious of is the fact that the Great Barrier Reef, which is a world heritage site and is a huge source of tourism dollars for Australia as well as a great source of pride for Australians, is being affected by coral bleaching. So, this incredibly gorgeous and vibrant environment is almost unrecognizable in large parts because of the way that the water is warming."

Our industry emits greenhouse gases, and these gases trap heat in the atmosphere. More than 90 percent of this additional heat is absorbed by the oceans, which warm up. The process Tessa describes has been observed around the world. When the water warms, corals give up their vital symbiosis with the algae they live with. Without the algae, they lose their color, and most of their food. They begin to starve.

When the corals bleach, fish and other animals who depend on the reef may disappear. Losing these vibrant ecosystems could have severe consequences beyond losing a pretty diving spot. After all, the oceans sustain the Earth’s ecosystems and biosphere as we know it.

And this is just one of the reasons why we need to tackle climate change. In 2015, an important step was made in Paris.

This was the moment when Laurent Fabius, then Foreign minister of France and President of COP 21, announced the adoption of the Paris Agreement. It was one of the most emotional moments in the history of the UN climate summits. The crowd in the conference hall cheered, applauded, and shed happy tears.

On the stage, the lead negotiators smiled and hugged in relief. Finally, after so many years, countries had agreed on a plan to limit global warming.

With a small hammer you can achieve great things, the summit’s president said. In fact, the green gavel in his hand hardly resembled an actual hammer. And it was indeed more symbolic.

Although one often associates the gavel with courtrooms, this was not a trial nor did a judge speak a final verdict. Instead, the French minister’s hammer sealed a voluntary plan, one that is neither ambitious nor easy to enforce, Tessa Khan explains:

"The great weakness of these sorts of international agreements is that they’re ultimately lacking an enforcement or accountability mechanism. So, we're relying on the goodwill and the political will of governments to go back to their home countries after these international negotiations and to do what’s necessary individually to contribute to these broader goals. And we know that so far, that the pledges that governments have made, and the Paris agreement, are really vastly insufficient to meet that goal of one and a half or well below two degrees of warming. So, national courts play a very important role, because they are an institution that can be used to enforce particular obligations."

For a couple of years now, lawyers like Tessa have been working on the potential liabilities of climate change. Now, more and more cases of climate litigation are popping up around the world. And they bring up the question of who can be made responsible for climate change.

Let’s take a look at one of the most interesting cases, the Urgenda case in the Netherlands. Urgenda is a non-profit foundation promoting sustainability, and it formed an alliance with 900 Dutch citizens. Together they sued their government on insufficient action to combat global warming. They went to the District Court of The Hague – which ruled in their favor.

"This was a really groundbreaking case, because the court ordered the government to reduce its greenhouse gas emissions. And, you know, that's an order that the government is obliged to observe. But I think, more importantly, it really shifted the political debate around climate change in a way that dwarfs, I think, the legal impact of the case itself. And the government is of course appealing the judgment in that case. And yet even though they’re appealing it, the conversation around climate change that the case created and the way that it mobilized Dutch citizens around climate change, has been enough to prompt the Dutch parliament to vote to phase out coal-fired power as soon as possible, it emboldened opposition parties within the Dutch parliament to draft and propose a new climate change act that’s significantly more progressive than existing legislation, and it has really just elevated climate change on the social and political agenda in the Netherlands. And I know that a number of parliamentarians have approached my colleagues who brought this case to thank them for really giving them the information and the motivation necessary to put climate change front and centre as a political issue in the Netherlands.", says Tessa Khan

The court in The Hague concluded that the Dutch government had been neglecting the needs of its citizens, by not taking appropriate measures against climate change. Initially, the Urgenda foundation and its allies had brought the case to court on the basis of human rights. Which to Tessa Khan, is at the core of the issue:

"Really, we’ve reached the point where climate change is no longer considered an issue that's only of concern to environmentalists. But people can see that it really represents one of the greatest human rights and social and political challenges of our time. And I think that the human rights impacts of climate change are so profound. They’re already being felt in places like Bangladesh. You know it's a direct threat to people's lives when climate change contributes to cyclones and typhoons and other extreme weather events, but climate change is also undermining the full range of other economic and social rights that people should enjoy, including access to clean water and food and shelter and decent work. We know that as it drives migration and displacement and competition over natural resources – that also contributes to conflict within and between countries. So, I really think it's fundamentally an issue that should be of concern front and centre to all human rights advocates."

According to Germanwatch, a German non profit, Honduras, Myanmar, and Haiti, top the list when it comes to Climate Risk. The Philippines and Nicaragua also rank high in vulnerability. Sixth is India’s small neighbor, Bangladesh, a country highly dependent on agriculture. This is where Tessa’s parents came from, before migrating to Australia. She still visits her family there regularly, and has seen the impacts:

"Bangladeshis are already really bearing the brunt of for example the salination of freshwater drinking supplies, the encroachment of… seawater into their crops, and it's driving migration to already overcrowded urban centres. And one estimate is that if sea levels would arise 1 meter it would cause 30 million Bangladeshis to have to migrate. And I think that really is illustrative of the deep injustice at the heart of climate change as a global problem that those who have done the least to contribute to the problem are really bearing the burden of the harm that it causes."

When you add up all the greenhouse gas emissions since the industrial revolution, Bangladesh has contributed almost nothing to climate change compared to countries in North America or Europe. And yet, it’s going to be heavily affected.

The reason why we compare historic emissions is because carbon dioxide accumulates in the atmosphere. There are natural processes to remove it – plants breath it in, oceans suck it up, and it slowly weathers on rocks. But they are too slow to keep up with our industrial emissions.

So what we do today, affects many generations to come. This is why more and more young people are active in the movement for climate justice.

"I think it's only natural that young people play a role in this kind of litigation because they will ultimately have to bear the brunt of the impact that generations before them have taken to fail to address climate change. So, in that respect, young people will be among the most affected and yet they’ll be the least responsible for the harms that climate change has wrought and will bring. So, I think that's a reason for young people to feel very aggrieved about climate change and the inaction of governments in terms of doing what's necessary to avert the danger of climate change," says Tessa Khan.

In the United States, young plaintiffs are suing their government, supported by an organization called “Our Children’s Trust”. They are demanding science-based CO2 emission reductions from their political leaders. A young Pakistani girl and her peers are seeking to replicate this approach in their country. And in New Zealand, a law student has sued her government inspired by the Urgenda case in the Netherlands.

"Courts provide a forum to foster an honest science and fact based conversation about climate change. So, governments have accepted international climate science year after year but they come home to their national constituencies and they’ll often tell lies or diminish the problem in a way that isn’t consistent with the science but they cannot do that in court. They're obliged to tell the truth and they'll not only have to tell the truth about the harm that climate change poses but also the truth about how relatively reasonable and easy it is for them to take the steps that are needed to reduce greenhouse gas emissions. I think courts are a very powerful forum that people are just starting to realize can really help to shift political and social debates around climate change," says Tessa Khan.

Climate Litigation is a pretty young and emerging field, and the first precedent cases are just being set.

After many years of climate negotiations, the United Nations was able to seal an agreement in Paris, but it’s a tooth-less tiger at this stage.

So citizens, scientists and activists are choosing a different route. They are heading to the courts and ask the judges to hold those accountable who are largely responsible for the problem.

And it’s not just governments that are being sued, but also, as we are going to see now, big companies who profit from selling and burning fossil fuels.

Our next story takes us to Huaraz, a small town in the Peruvian Andes. This is where Saúl Luciano Lliuya lives with his family and works as a mountain guide and peasant. We met Saúl at the climate summit in Paris, and he explained his case to us.

In the Andes, Saúl told us, he is witnessing a strong melting of the glaciers. As a mountain guide, he works in the Andes every day, and watches the glacier lakes grow and multiply. This poses a huge risk to his valley, because any time, a flood wave could break lose and destroy his town. Saúl is very distressed to see the glaciers disappear.

As a temporary solution, pipes have been installed in the glacier lake to release the water. But in the case of a huge flood wave, they won’t be enough. So Saúl and the people of Huaraz want to build a dyke to protect them. Which it’s going to be costly.

In 2014, Saúl ventured to the capital Lima, where the global climate community met that year. The people who heard his story connected him to Germanwatch, a German NGO, and to Roda Verheyen, a climate lawyer. She lives and works in the city of Hamburg, in Germany. We called Roda, who has taken up Saúl’s case.

"We came to the assessment that actually, there are no other viable options for him open than to actually use the civil law in national courts. And that is what we're doing currently – we are suing a major contributor to climate change, which is the German energy company RWE, basically a coal company, to take responsibility for protection measures in the Andes to make sure this glacial lake does not burst and does not inundate the city of Huaraz and my client's home," says Roda Verheyen.

In March 2015, Saúl and Roda asked the German energy company to accept responsibility for their share of costs of protection measures, which would have translated into the sum of 17,000 Euro.

"The primary goal of this action is to get the court to find, that there is responsibility, partial responsibility. He does not demand payment to himself, because he himself could not fix the problem by himself and neither will 21,000 Euro by RWE. What will fix the problem is if every significant contributor to climate change, in particular the major companies – oil, coal, gas – would contribute their share to actually fixing the problem," says Roda Verheyen.

But how did the plaintiffs calculate the share for RWE, which covers only a small portion of the actual costs? The sum equates to 0.47 percent of the costs of protecting Huaraz and Saúl’s valley from the outburst of the glacial lake.

Historically, 0.47 percent of all carbon dioxide accumulated in the atmosphere emitted can be traced back to the German energy company RWE. So this is the company’s historical share.

Saúl Luciano Lliuya is the first plaintiff who is suing a European company for risks related to climate change. If his case turns out successful, this could open a pathway for many similar claims in Europe and elsewhere.

The approach is based on a piece of research that has become quite influential in the climate justice movement. The so-called Carbon Majors research identified the historical contributions of major fossil fuel entities. It was initiated by the Climate Justice Program, which Roda is a co-founder of.

"My colleague Zelda has used the Carbon Majors work to make an argument in front of the Human Rights Commission of the Philippines to basically compel the committee to have a hearing with these major polluters, arguing that they, having emitted so much CO2, are partly responsible for the very severe impacts the Philippines are now experiencing – mainly extreme weather events, which are connected to some extent to climate change. And the argument there is very novel and very interesting, because normally human rights are a protection right, afforded to citizens of particular states. So, it's really a state-to-citizen-level law, whereas here, it's employed to say that private companies being such big causes of a problem are actually also bound by human rights principles," says Roda Verheyen.

And this is just one way activists and lawyers are trying to force companies to accept their responsibilities. In the United States, Roda Verheyen already sees a new field of climate investigations emerging. It tackles the financial assets companies hold, and their responsibility towards shareholders:

"Obviously, the issue is that still oil and gas companies around the world, and coal companies as well, are assuming that they will be able to dig up all of their reserves and sell them in the market place, which makes up a lot of their assets and their net worth. So, what's going on now, is an investigation about whether or not that's actually fraudal. So whether or not these companies actually commit fraud to the investors, by not disclosing the risks that these assets will never be returned on. And this is something I think would be very interesting to pursue in Europe as well since there are a lot of companies owning reserves and in oil and gas and coal as well here. And we have regulations in the financial markets of the European Union for example, that are very similar to those in the U.S."

None of these novel cases are easy to argue and sure to succeed, of course. In the case of financial assets, it’s far from simple to determine the actual risk or the fiduciary duty of asset managers. But from the environmental point of view, this is urgently necessary. Turning this into an argument accepted in court is a challenge.

Can a German energy company really be made responsible for paying to prevent potential damage in a Peruvian village? Roda Verheyen thinks that’s possible. Now she has to convince the court:

"We lost in the first instance, the argument being that there would be no way we could attribute emissions to the actual infringement in terms of the legal right of my client. And this is an argument about causation mainly. The Court argued that, since everybody emits greenhouse gases, there's no way to actually trace or attribute emissions to this phenomenon of climate change and particularly the local impacts. I believe that's wrong. I’m currently writing the appeal to this decision. So now we're going to the higher court. And I do hope that the argument I make will convince the court to reassess. So, I do hope that we will be able to actually go to court and prove that yes, the problem that we see up there in the Andes is partially due to climate change."

Our actions on climate change today will affect the future for generations to come. They will decide how people around the world will be able to enjoy safety, security, peace, freedom, equality – and ultimately, a good life. Tessa Khan sees it both as a challenge as well as a chance:

"My personal journey has been one that’s allowed me to see the way that climate change kind of feeds into each of these issues and of course I see it as a great threat to sustainable development. But more importantly I have recently recognized that it's also an opportunity to remake (click) the world that we live in into one that’s more just and equitable, and that if we use the impetus that climate change provides to really reshape the ways in which our economies and societies function and what we value, I think it could go a really long way to addressing many of the trends that drive social and economic inequality, both within countries and also between the North and the South. So, I see it as a huge opportunity as well."